Com. v. Bullock, L.

2022 Pa. Super. 211, 286 A.3d 1282

• Court: Superior Court of Pennsylvania
• Decided: December 9, 2022
• Docket: 357 EDA 2022
• Status: Published

Opinion

J-S30011-22

2022 PA Super 211

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

LEA BULLOCK

Appellant No. 357 EDA 2022

Appeal from the Judgment of Sentence Entered December 15, 2021 In the Court of Common Pleas of Montgomery County Criminal Division at No: CP-46-CR-0001587-2019

BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*

OPINION BY STABILE, J.: FILED DECEMBER 9, 2022

Appellant, Lea Bullock, appeals from the December 15, 2021 sentence

imposing concurrent terms of time served to 23 months of incarceration

followed by one year of probation for three counts of endangering the welfare

of a child (“EWOC”).1 We affirm.

The record reveals that, on August 8, 2018, Appellant’s children, aged

11, 7, and 6 years old, found Appellant passed out on the porch of their home.

The children summoned police, and police arrived at the scene to find

Appellant stumbling, having difficulty remaining conscious, and smelling of

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. § 4304. J-S30011-22

PCP. They took her into custody after determining that she was unable to

care for her children.

The children, upon being placed with their grandparents, disclosed

multiple instances of abuse at the hands of their mother. The Commonwealth

eventually charged Appellant with aggravated assault, strangulation, unlawful

restraint, false imprisonment, and three counts of EWOC. At the conclusion

of a September 21, 2021 bench trial, the trial court found Appellant guilty of

three counts of EWOC and not guilty of the remaining offenses. The trial court

imposed the sentence set forth above on December 15, 2021. The trial court

denied Appellant’s timely post-sentence motion on January 6, 2022. This

timely appeal followed.

The only issue before us is whether the trial court erred in permitting

the Commonwealth to introduce evidence of Appellant’s prior conviction for

public drunkenness (see 18 Pa.C.S.A. §§ 5505). Admissibility of evidence

rests within the discretion of the trial court, and we will not reverse absent a

clear abuse of that discretion. Commonwealth v. Hernandez, 862 A.2d

647, 650 (Pa. Super. 2004), appeal denied, 889 A.2d 88 (Pa. 2005). The

operative statute on this issue is 42 Pa.C.S.A. § 5918:

§ 5918. Examination of defendant as to other offenses

No person charged with any crime and called as a witness in his own behalf, shall be asked, or if asked, shall be required to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged, or tending to show that he has been of bad character or reputation unless:

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(1) he shall have at such trial, personally or by counsel, asked questions of the witness for the prosecution with a view to establish his own good reputation or character, or has given evidence tending to prove his own good character or reputation; or

(2) he shall have testified at such trial against a co- defendant, charged with the same offense.

42 Pa.C.S.A. § 5918. “Pennsylvania courts go cautiously when considering

whether to admit evidence of prior convictions for purposes of impeaching the

credibility of a defendant testifying in his own behalf.” Com. v. Hernandez,

862 A.2d 647, 650 (Pa. Super. 2004), appeal denied, 889 A.2d 88 (Pa.

2005).

This Court considered § 5918 in Commonwealth v. Murphy, 182 A.3d

1002 (Pa. Super. 2018), wherein the trial court permitted the Commonwealth

to cross-examine the defendant on a prior conviction for possession of a

controlled substance after the defendant opened the door during his direct

examination. The defendant’s direct examination by defense counsel included

the following exchange:

Q. Do you use cocaine?

A. No, sir.

Q. Do you use heroin?

A. No ,sir.

Q. Do you use marijuana?

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Id. at 1007. On cross-examination, the prosecutor asked the defendant if he

had ever used those drugs, and he said he had not. Id. Over defense

counsel’s objection, the trial court then permitted the prosecutor to examine

the defendant on his prior drug possession conviction.

The defendant argued that he did not open the door on direct

examination, as his direct examination testimony pertained only to his present

use of controlled substances. This Court disagreed, reasoning that the

defendant, in denying that he used controlled substances, introduced evidence

of his good character and opened the door to cross examination on that

subject. Id. at 1008. Thus, the trial court did not err in permitting the

prosecutor to examine the defendant on his prior convictions for possession

of drugs and drug paraphernalia. Id. at 1008-09.

In Hernandez, the prosecutor asked the defendant about his drug use,

and the defendant claimed that addicts and “junkies” do not sell drugs, and

that he never sold drugs since he became an addict:

Q. Now, do any drug dealers […] sell to support their habits?

A. Almost all the addicts, what they do is they steal in stores, they steal cars they do anything to maintain their habit.

Q. Including selling some drugs and using some, correct?

A. Since I’ve been a junkie, I don’t sell drugs. I’m an addict.

Q. You’ve been a junkie for 20 years?

A. Yes.

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Q. And you just indicated that since you’ve been a junkie, you’ve never sold drugs?

Hernandez, 862 A.2d at 648 (emphasis added). At this point, the prosecutor

sought to introduce the defendant’s prior drug dealing convictions. Id.

Defense counsel objected that past occurrences were beyond the scope of the

defendant’s direct examination, which dealt only with the defendant’s current

activity. Id. at 648-49. This Court held that the defendant’s “unsolicited

testimony that he had never sold drugs constituted an assertion of good

character that the prosecutor was entitled to contradict by reference to

countervailing evidence of prior convictions.” Id. at 648 (emphasis added).

We further elaborated that the defendant gave a specific response—“Since

I’ve been a junkie, I don’t sell drugs.”—to a general question about addicts

“selling some drugs and using some.” Id. at 651.

The Hernandez Court cited Commonwealth v. Trignani, 483 A.2d

862 (Pa. Super. 1984), in which the prosecutor asked, “You never shot

Anthony Sanutti?”, and the defendant responded, “I never shot anybody in

my life.” Id. at 541. The Trignani Court concluded that the defendant, in

his response, introduced his character for nonviolence. Id. Thus, the

Trignani Court concluded that the trial court did not err in permitting the

introduction of the defendant’s prior conviction for an aggravated robbery in

which a store clerk was shot. Id.

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In light of the foregoing caselaw, we consider Appellant’s testimony in

the instant matter. He said the following on direct examination:

Q. Now, I’d like to move you ahead to August of 2018. You’ve heard testimony about what it is when the police came to your place.

Q. Did you use any PCP that day?

A. No, sir; I don’t use drugs.

Q. Were you drinking any alcoholic beverages that day?

N.T. Trial, 9/21/21,a t 172. Thus, defense counsel limited his questions to the

day of the alleged crime. In response to the question about PCP, Appellant

added, unsolicited, that she does not do drugs. But she made no unsolicited

blanket assertion that she does not use alcohol.

Defense counsel continued to ask Appellant to describe the events of

that day of her arrest:

Q. So how did you feel that evening?

A. I felt terrible. I was disoriented. I didn’t know what was going on. I was hugging my daughter, saying what’s going on. All I remember is the police flashing bright fluorescent lights in my face, and then they just put me in the car.

Q. Do you remember anything else about that evening?

A. After that, I woke up, and I was in the county. They took me straight to the county.

Q. Did you sit in Pottstown police at all?

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A. At the Pottstown police station, they gave me a -- I’ve never been arrested, and that was the first time I ever went to jail.

Id. at 173 (emphasis added). Thus, Appellant’s testimony included an

unsolicited assertion that she had never been arrested.

During Appellant’s cross-examination, the prosecutor followed up on

Appellant’s prior drug and alcohol use:

Q. I believe you also testified that you don’t use drugs.

A. No, I don’t.

Q. Have you ever?

A. No, I haven’t.

Q. What about alcohol?

Q. Are you sure?

A. I’m sure.

Id. at 190.

At this point, the prosecutor began to ask Appellant about a prior public

drunkenness conviction, and defense counsel objected. Counsel disputed

whether Appellant testified that she does not presently use alcohol, or whether

she meant to say that she never used alcohol. Id. at 191. Thus, the trial

court asked several questions:

[THE COURT]: Ms. Bullock, have you ever used alcohol?

THE WITNESS: No.

THE COURT: Ever?

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Id. at 193. On this basis, the trial court overruled Appellant’s objection and

permitted the Commonwealth to ask her about her prior public drunkenness

conviction.

This case is distinct from Murphy in one important respect. On direct

examination, defense counsel asked Appellant if she had any alcoholic

beverages that day, i.e., the day of the incident. Appellant’s answer, “No,

sir,” did not imply that she never used alcohol. Instantly, therefore, we cannot

conclude that Appellant, by an assertion of good character on direct

examination, opened the door to being cross examined as to any prior use of

alcohol. Rather, the open-ended question as to Appellant’s alcohol use –

“What about alcohol?” – came from the prosecutor on cross examination. The

trial court followed up by asking Appellant if she ever used alcohol. After

Appellant’s negative response, the trial court admitted evidence of the prior

public drunkenness conviction.

Thus we conclude that the trial court’s rationale for admitting the prior

conviction was flawed, because in this case, unlike Murphy, Appellant’s claims

about alcohol use were solicited during her cross examination. Nonetheless,

we find no error, because Appellant’s prior conviction was admissible under

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Hernandez.2 There, and in Trignani, the defendant made an unsolicited

assertion of good character and the courts permitted evidence to contradict

the assertion. Similarly in this case, Appellant claimed on direct examination

that she had never been arrested. The admission of her prior conviction for

public drunkenness was therefore admissible to contradict that assertion. For

this reason, we find no error in the admission of her prior conviction for public

drunkenness.

Appellant did not address Murphy or Hernandez in her brief, and the

cases she relies upon do not require a different result. For example, in

Commonwealth v. Garcia, 712 A.2d 746, 749 (Pa. 1998), the

Commonwealth cross-examined the defendant about several prior crimen falsi

convictions in New York even though he never placed his character in issue.

Id. at 748. A jury found him guilty of first-degree murder. Id. at 747. The

Supreme Court held that § 5918 “is clear that a defendant shall not be asked

about his prior crimes, except under limited circumstances, none of which

apply here.” Id. at 749. Thus, the trial court committed prejudicial error in

permitting examination about the defendant’s prior crimes. Id.

Similarly, in Commonwealth v. Bunch, 311 A.2d 632 (Pa. 1973), the

Supreme Court held under a predecessor to § 5918 that the trial court erred

2 “It is settled that we may affirm a trial court’s evidentiary ruling on grounds other than those specified by the court itself, particularly where the additional reason is apparent from the record.” Commonwealth v. Edwards, 903 A.2d 1139, 1157 n.19 (Pa. 2006).

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in permitting the prosecutor to examine the defendant about prior instances

of carrying a weapon when the defendant never put his character in issue.

Id. at 633. And the error was not harmless because the “ill-disguised purpose

was not only to suggest a general disposition to violate the criminal statutes

of this Commonwealth but more importantly to implant in the minds of the

jury the concept of an individual [in] possession of a violent disposition quite

capable of forming the state of mind required for a finding of murder in the

first degree.” Id. Finally, in Commonwealth v. Barron, 264 A.2d 710, 712

(Pa. 1970), the Supreme Court concluded that the prosecutor’s cross

examination on the robbery defendant’s prior convictions—without the

defendant having introduced evidence of his good character—was prejudicial

error: “such cross-examination is specifically proscribed by statutory mandate

with certain enumerated exceptions, none of which permit this type of cross-

examination even if the evidence of guilt is overwhelming.”

Inasmuch as Garcia, Bunch, and Barron did not involve the

defendant’s assertion of good character, they are inapposite. Here, as in

Hernandez, Appellant offered an unsolicited assertion of good character. And

here, as in Hernandez, the trial court properly admitted evidence of a prior

conviction in contradiction of Appellant’s assertion. Thus, the ill that § 5918

and its statutory predecessor sought to prevent, while present in Garcia,

Bunch, and Barron, is not present here.

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Appellant also asserts that the trial court should not have permitted the

prosecutor to examine Appellant about the circumstances of the prior arrest

and conviction, because the introduction of a prior conviction as impeachment

should be limited to the “name, time, and place of the crime and the

punishment received.” Commonwealth v. Creary, 201 A.3d 749, 754 (Pa.

Super. 2018). We conclude that any error in this regard was harmless.

“Harmless error is present when the properly admitted evidence of guilt is so

overwhelming and the prejudicial effect of the error is so insignificant by

comparison that it is clear beyond a reasonable doubt that the error could not

have contributed to the verdict.” Garcia, 712 A.2d at 749. Furthermore, any

error in the inadmissibility of a prior conviction is harmless where the trial

court, sitting as finder of fact, expressly states that it disregarded the prior

record. Commonwealth v. Davis, 421 A.2d 179, 183 (Pa. 1980). That is

precisely what occurred here:

The court found [Appellant] guilty of three (3) counts of EWOC based on the testimony of [the children] and Ofc. Maciejewski, all of whom as stated were credible. That testimony […] was more than sufficient to convict [Appellant]. As a result, [Appellant’s] denial of the use of alcohol and her prior conviction for public drunkenness had no impact on the Court’s ultimate finding of guilt.

Trial Court Opinion, 4/7/22, at 7-8. Because the trial court did not rely on the

prior conviction in determining Appellant’s guilt, any error in the admission of

its circumstances was harmless beyond a reasonable doubt.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/9/2022

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